The Sun. — London, England, 1838-08-10 00:00:00

jog Al" , all, !Dr . I U ll 4)0 0 :,, a 1 , ; 11,1 itl eh th is thlt tlA t -e b is ° 1, 0 promulg e , th ey s h ou ld ta k e extreme care i n d ee d to fol low the spirit, and even the form of British legislation, in order that, as necessity compelled Parliament to arm them with unconstitutional legislative powers, they should exe cute the unconst i tut i onal b ut necessary powers i n as consti tutional a frame, and manner, and spirit as possible. The ioo(irbsi zuoantio whom they entrusted those powers ought to be b and resolute. ; but he ought also to maturely consider c e perils with which he had to grapple, and he ought more over to be aware and to feel that discretion and prudence in ul( etin those perils and i n th e ex e rc i se o f those powers were fully more, and certainly at least as necessary in accomplish ing the object he had in view—pluriton audacice quoad ca pirnda pericula, plurium consilii ipso inter pericula.—( Hear, hear.) When he came to consider how far these maxims had. been followed, how far these canons of policy had been obeyed, how far those sound and 'moderate principles of common jus tice had appeared in the conduct of the Canadian Council, he was compelled to say that it was the very contrary. If he Thad said t o t h e i r L ordsh i ps at the time this Canad i an Bill was passing, " Do you mean to suspend the Constitution, and to arm a dictator with the power of confiscating any individual's property, of seizing his person, of condemning him unheard, of passing Bills of pains and penalties of his own mere motion, and, with the assistance of his council, of pro mulging egainst whom he chose, and for what he pleased, at any moment Acts of attainder?" if he had said " Do you mean in this Lill, not only to make the Governor of Canada the su preme law-giver, with his council, but a judge civil and cri minal in every man's case, as to his property, his limb, his liberty, and his life, a supreme criminal judge without a ppeal: and that he, the same person, with the assistance 01 his council, should execute ,the criminal law as well as the civil in all cases which the prerogative of the crown, his master or mistress, whom he re presents, has always and in all times delegated to the sworn judges?" should he not be told at once, and by every man who had supported the Bill on the policy in which it had originated, whether sitting on that or on the other side of the Flouse, that lie was putting an extravagant gloss upon the Bill, that he was arguing upon the letter against the spirit, and that no man living would ever have dreamt of conferring such powers ?—( Hear, hear.) But to make it more clear, else where, in the other House of Parliament, that no such un halite.? power had Leen given, a great lawyer, the worthy suc cessor in his ( Lord Brougham's) mind, of the Romillys, the Pigots, the Erskines, the Gibbses, and the Ellenbouroughs of past times, he meant the late Solicitor-General, his Hon. and Learned Friend Sir William Follett, not being satisfied with what had satisfied them, inserted words to which their Lordships' attention had more than once been called by him, a proviso expressly declaring that no law or ordinance of the Governor in Council should be passed which should re peal or suspend or alter any Act of the British Perna ment.—( Hear.) If then he had stated, supposing this clause formed parcel of the Bill originally, or if his Noble and Learned Friend ( Lord Lyndhurst) had stated, after the precautions that had been taken to exclude such measures, Tight not the Governor, notwithstanding they had tied him from altering, suspending, or repealing Acts of the Bri tish Parliament !generally, might lie not in a particular case p a ss by them, and issue an ordinance in the teeth of them, to " a ble a party to do what the Act of Parliament prohibited, and to compel a party to suffer that from which those Acts protected him, and which were so formed for the express pur- Pose of prcteciing- him, would not the answer have been that it was monstrous, outrageous, ridiculous to suppose such a thing ? When they tied no the hands of the Governor in Council from altering the law made for the protection of all, should they allow him to evade that protection, by making a law for the oppression of an individual ? The law being to protect A, B, C, and all other subjects, and being framed for that protection, and the Governor bring presented from repealing that law, Should the Governor he allowed to do exactly the very thing the law prohibited ? Should he be allowed to destroy A, 8, add C, by removing them from the protection of the general law ? Flo need not state what the answer would have heart- But, supposing- those who were hostile to the measure— :and Ile himself was one—had said, Why, not only will the Governor be passing Bills of attainder, netwithstanding all these grecautions—not only till he be flying in the face of al: the most snered and best establi,hed laws that guard the purify and jutice of the adeiinigr eioa of the criminal juris prude.‘ce by which the statute of the 14th Geo. 111. in express terms was made parcel of the law of Lower Canada, both as re o gards treason and all other crimes—not only will be do that, bun' I am eraid, as you make him absolute, he will condemn pecplc who have never been tried; not only will he pass BIN(); pains and penalties, privilegium odiosum, as civi lians call it ; not only will he pass Bills of attainder, acts which in any country are resorted to only in cases of absolute and overruling- necessity, which justifies itself, however atro ,elons the m at t er it may compel you to do—not only will he have recourse to Bills of pains and penalties and Acts of at t:iiiider, but he will not even pursue the ordinary course in all Bills of attainder—have the confession of the party, or enable the party to come and appear and oppose them, or appoint a certain day, if the party has absconded, before which, if he dues not appear, lie shall be taken to have confessed and be I nade subject to tile penalty of the Act. Supposing I had said he will pass a Bill declaring a number of individuals, not i n the country, who have never confessed, who were never tried, against whom no indictment has been laid, who were not within the country at all since the Act in question—that he will pass a Bill condemning them all to death if they come within the country—persons who were never tried, having - confessed nothing, there being no plea and no hearing, having 'an notice of such Bill served upon them, or any copy of notice a sking them whether they meant to come back, and giving die a day on which to appear and take their trial — supposing n e (Lord Brougham) had said that, what would be the answer ? Why, that he was putting a case which nothing but the most disorderly imagination could suggest; that he wa s supposing a case to happen which nothing but a distortion of the understanding, arising from hostility to the measure, and incurable prejudice, could for a moment have made lion harb our. That he was sure would be the answer w hi c h e should obtain, and he was now about to show to their Lordships that every one of these impossibilities had actually appened. He would pass by the statement of the Earl of I .3igrimm in his l etter , in which he stated that the ringleaders bad eon induced t o plead guilty, because whoever read the Whol e passage would perceive that he was using an ordinary loose f„..npf expression which meant pleading guilty, and he W ould ref:sr to another point, which stood upon very different 1i g: 1. 74 1 s- In the first place the Earl of Durham said that these confiss.sed. Now he was bound in justice to say that Wolfred Nelson and the other persons, by their friends in America an d i n thi s coun try, peremptorily denied their Pleading guilty or confessing ; they said that a paper was handed to t h em f or t h e i r signature , w hi c h co n t a i ne d acon fession of their guilt, but they respectfully declined to sign the paper; that no objection was made to their confessing ha ving been guilty of resistance to the Government, but they Positively denied that they had traitorously, or even sedi tiously, or rebelliously resisted the Government. He ad e2ltftted that those persons were willing to go to the Bermudas, Fitt there was a reason w h y h e could' understand this. The 2 , 111 7 law whi c h h a d b een introduced into Canada by Sir -Kobe l -a Peel, and which had been found to work admirably, was only - a temporary Act; it was experimental, and it ex pined iii 1 f 534, when a new Bill was introduced. Then came an the unfortunate dissensions between the two Houses of As sembly, wh en the Upper House flung out the Jury Bill be cause the Lower House flung out the Taxes Bill. There was therefore nose no jury trial according to Sir Robert Peel's Bill, but they reverted to the old jury system, which gave t he sheriff, who was removable at the pleasure of the Go vernor, th e p owe r of selecting the jury, so that Nelson and the others and here he must say that he was informed that Nelson was a respectable man, and one who had the confi dence of his fellow-countrymen (but, however, that might be i-ao or not), but if he were ever so bad a man and ever so uilty his (Lord Brougham's) observations would apply just S. z much as if he was the most respectable man in the world, be csause it was always against men of less pure character that ;w -hit) ni acts were directed, thus entrenching themselves in the net t ral feelings of men when they wished to overstep the bone, Is of law—that was a reason why these persons Should prefer going to Bermuda, they being aware, as they now au `nutted, that they could not be detained there a mo ment; t hat as soon as they were three miles from the shore, nere th c jurisdiction of the Admiral began, they might 'log an ac tion against the Captain for false imprisonment 4rheheii7a r ahem on board ; that the first ship they hailed Ight to go on board of, and go to this country, or bac , y k li to Cal lade i! they wished. But they did not p lead guiit y , or tn , e any confession. If taley were disposed to plead guilty . 1 1acy won. d e go before court and jury, and eourt n ; Plead the g i g e g. c guilty. They were not taken before any oatinvvdelivi ~ ,eginaelar other question suggested itself. It was said that in Canada could be found to convict these • persons upon o we! confession. Why, in such a case the .I t lrY would 1, ‘ e nothing . to do. If they were of sound mind they must e, l' a v e ica them for pleading guilty ; there would be fo . 1 ! the jury to 'lila and consequently they must I_ 4 " been conVieted.. If, therefore, those persons had been Z . Posed to plead guilty, they would do what was done every at the I Dld Bailey, they would tai.ce them before a jury, have their I ilea entered upon the record, and sentence passed 11/ j a Matter of course, and Government might by negotia 'on corer iilte that sentence to transportation by m akin g ter ms g wi';:la the parties. for them to agree to go to the Bar (n. a.ny other colony. The Earl of Durham said that wontld riot send them to a penal colony. Was it T tain that the Bermudas was not a penal colony ? It I , v ,as a penal colony ; there wee forced work there. s i- - Cl"eara shear, hear.) But this was perfectly immaterial ; o r Wisetlact• it was a penal colony or not did not affect his atgu went, He bad already stated that it was his deliberate c PW.lan that the proceedings that had taken place were illegal under the tern's of the Act as it stood, and all that be had to do in this Bill -was to state that there were doubts, for every -awyer must agree in saying that to doubt whether a thing Was right or wrong was sufficient to induce them to pass a declaratory Act, uoless, indeed, some one were to get up and slay that they were All of them clearly in the wrong, and that there was no doubt bat they were wrong. What he had stated referred to the first branch of the case, and that was by far the most inconsiderable. What would be said of that part of the ordinance' which condemned all those men who were snot in the province, who bad not only never been tried, but faith whom no communication had taken place, who did not leno w that the ordinance existed, who had no notice of the `ttention in order that they might oppose it—those men who ha i never confessed, but who positively denied, many of them, a l l ea-peipation in last winter's revolt —men who did not con fesg aeon like Nelson, that they admitted th fact, but des w ore :ice, but men who denied b o th the e fact and the it i r ed tl a •„ gg ge guld he said of a , reposition ereee a— so inomtious, fact, necessary tha t t , ed the on:, to pass an Act of at tai'hiler vas t ,.hc setting foot eeross the Canedien fionder, al g „ l i e - was untried, unpe,elsecuted, unheard, ignorant of Ae, and w i t ;giut notice of the At, and without a da y b ein ' e l , . e gge d on e f i g lch they might appea: and stand their . az ea, trial even according to the bad jury law of Canada.—( Hear, hear.) But all this had been done. This was the case be fore their Lordships. In the highest Court of Judicature in the world, in the highest Court of British justice, where the hair of a man's head could not be touched without full boar ing, open investigation, and fair trial, he need no: ask whether such proceedings ought, to be condemned ? But it was said that the Earl of Durham and his Council, who were on the spot, knew better than they here could what steps it was most fitting to take. True they were upon the spot, and for that reason he and his Council would best know how to execute the law, and for that they bad given powers, but they gave lio power to pass Bills of attainder e against absent men ; he had no power to pass them at all, but it was clearly illegal to pass them against absent men without notice ; it was a violation of the power given, admitting for a minute, although he altoge ther denied it, that the power was given to pass Bills of at tainder, that such had been the case as regarded M. Pa pineau and fourteen others. With respect to Bills of attainder, although they were only justified by . necessity, yet they had been se frequent as to hav e estabhshed a kind of practice which was consistent with justice and common sense. Lord Chief Justice Cumming, in his excellent Treatise, said, that in bad times where a person was in the country, he might have been condemned without an appearance, but where a person was absent, the course was to fix a day, so as to enable him, if he chose, to make his defence. In the times of the Plantagenets, the Tudors, the Stuarts, and even in their own times this was the uniform practice. This was the case in the time of Edward 11., in 1322, in Despencer'a case ; and in the case of Sir John Rmick, by the Bth of William 111. The very title of the Bill in the case of Fenwick and the other persons implicated in the assassination plot contained the words "unless they render themselves to justice upon a cer tain day, four months from the date of the passing of this Act." Again, in the first of George I. there was an Act to attaint James Duke of Ormond, unless he rendered himself on a certain day named, and that was six months from the date of the passing of the Act. And what said that illus trious and eminent lawyer Lord Ellenborough on a similar occasion, upon a celebrated case that was heard before him ? Sir Vicary Gibbs, on that occasion, stated that the law was that that Court (the Court of King's Bench) was bound by a foreign judgment ; he produced the foreign judgment, showed the Seal of the Court, and proved the Seal to be genuine and the handwriting of the Judge. What was Lord Ellenborough's celebrated answer? He said he did not deny that to be the law, but he said that all power must be exercised rationally—all laws had re ference to right reason; and although lie admitted what was stated to be the law, and that the power of a foreign Court was supreme in its own dominions, yet the law of Eng land was binding upon him and the Jury, and he could not traverse it. It appeared to him not only not to be consistent with reason and justice, hut contrary to the. first principles of reason and justice, that either in a civil or criminal proceeding a man should be condemned without being heard. —( Hear, hear.) The question before the Court was whether, is the absence of a person of the name of Buchanan, nailing a notice on the Court doors was sufficient. Mr. Buchanan was no more in the island of Tobago than M. Papineau and the other fourteen were in Lower Canada. But if it were so vicious, so contrary to all reason and justice, that any man should, in his absence, and unheard, and unnotified, be con demned even in a civil cause, how much more ia a criminal Court, and and upon a capital felony, was it contrary to all the principles of reason and justice. But again, had each of these cases been made the subject of deliberate and separate legislation? Were the circumstances of each inquired into? The answer would be, of course. lie would show that the very reverse was the fact. In the first place there were two gross misnomers, than which there could be no greater evidence of the inconsiderate speed and the want of due deliberation with which those proceedings were accom panied. For instance, in the list of the parties ac cused one was called by the name of Edmund Burke O'Calleghae, whereas, as he was informed, his real name was Edmund Baiiev O'Callaghan. F this man had been indicted under a false name lie could net have been con victed. Another person was named in the ordinance John Regan, whereas he was named after one of the greatest law yers in this or any other country, namely, Jeremy Bentham, and his name, therefore, was Jeremy Bentham Regan. With regard to another of the parties, Louis Perot, it was to be observed that he did not go away after the outbreak. At the time it occurred he was in the United States, on the business of his house of trade, and was absent on that business, and remained so, because his brother, in a scuffle unconnected with this affair altogether, was killed by a musket shot. He did not abscond then, as the preamble— which was the ground of the whole measure—stated, after warrants charging him w ith high treason were issued against him. True, be did not go back ; but was it the same thing on which to ground a Bill of attainder, whether he absconded or whether he did not return from his lawful occupation in the United States to his lawful occupation in Quebec ? As he before said, the ground of the proceedings against these parties was, that there were warrants of high treason against them, and that they absconded. Now, as regarded Mr. Wright, there was no charge of high treason against him, but a warrant of sedition, which was a misdemeanour, punishable wily by fine and imprisonment. Nevertheless, the decree against him was death. It was to be hoped that Mr. Wright had not suffered the penalty pronounced againSt him. He put it to their Lordships with ail respect, would they, if they had known that, under colour of this Act, these things would have been done—would they—lie was confident they would not, for their consent to passing it was wrung from them by the representations made to them of the necessity of the case —would they have set their hands to the Act if they had been told that such enormities were to be committed under it, and were understood by its legal authors to be its true intent and meaning? He answered for the Peers of England, and an swered, No.—(Cheers.) Their Lordships had now answered for themselves. They were incapable of sanctioning such an Act as this. They never would have consented to such a construction being put upon it. Those who were lawyers knew it would not bear such an interpretation, and those who did not belong to the legal profession by the light of their common sense were guided to the same conclusion. But he threw altogether out of view this consideration as immate rial to the passing of this Bill. If this Act did not bear the construction he put upon it, if he was not right in his inter pretation of the law, nor those legal persons whom be had consulted on the subject, and who entirely concurred with him, nevertheless they must pass this Bill, to declare what the proper construction of the law was. If, on the other hand— for the dilemma was perfect—he was right in his law, if an improper construction had been put upon the Act by the Go vernment of Canada, then, past all question, this Bill must be passed, because doubts were entertained on the subject here. The only question was, whether they were in error on the other side of the water, as he said they were, or whether the error was here. The Noble and Learned Lord then pro ceeded, in a very low tone of voice, to refer to the provisions in his Bill which related to the indemnity. He could not un dertake to indemnify for all that had been done. There might have been other breaches of the law for which he should be very loth at once, and not knowing what they were, to give an indemnity. He thought an indemnity ought to be given as regarded the nine persons said to be sent to the Bermudas ; and he had framed this Bill accordingly—( Ilear)—but (as we understood) he would not grant an indemnity to those who had done so strange a thing as to condemn to death persons who bad not had the benefit of any form of trial whatever, nor in such an extraordinary case as the condem nation of a person for high treason who had been guilty of only a misdemeanor. It was admitted by the Government that illegal things had been done to a certain extent. He differed with them greatly as to the extent, and he also differed with them materially as to the construction to be put upon the Act. That a Declaratory Act and an Indem nity Bill were necessary was quite clear. How far the indem nity and how far the declaration were to be carried was an other question. He had felt it his duty to search for prece dents, and he had found one which completely met this case— he should be sorry to say that this was any parallel to it in its features of gross and culpsble error, but he was speaking of the principle. The Noble and Learned Lord then referred to a Bill which had been drawn up by Lord Mansfield, which was the subject of great discussion. It was an embargo. case. It stated that the acts in question were not justified by law, but ought to be by Act of Parliament. He proposed a similar preamble to his Bill. He had heard with astonish ment this argument used against the course he proposed— that their Lordships did not wish knity to be shown to those individuals who were named in the ordinances as the objects of it, and that was the reason why they opposed the vigour which the Government had shown beyond the law. He did net think that in the whole course of his political life he had observed any misrepresentation more gross or extravagant than this. It was not the lenity shown to Dr. W. Nelson and his late associates that he complained of, but he did complain that they were not sentenced according to law, and • that they were sent to the Bermudas, when the law did not authorise their being sent beyond Canada. But what became of this talk of lenity, and mercy, and kindness, and forbear ance with regard to M. Papineau and his fourteen asso ciates ? —and that was the gravamen of his charge. Was it mercy to them, was it lenity, kindness, or forbearance, to condemn them to death without first giving them a hear ing—to pass a Bill of attainder against them, they being ignorant of the intention to pass it ? Was it mercy to allow them not one of those safeguards granted to traitors in the worst of times under the Plantagencts, the Stuarts, or the Tudors ? Was it mercy, or kindness, or forbearance to con demn them unheard. and even ignorant that their case was under consideration? A more extravagant, a more outra geous mis-statement of the whole question at issue never was ventured in any argument by any persons, whatever the degree of heat occasioned by the conflict of controversy. Every one knew that the law of England held men to be innocent till they were pronounced to be, guilty. He gave the benefit of that just maxim of jurisprudence to M. l'a pintau and his associates. • Till they were tried he had a right to assume they were not guilty ; and even if they proceeded by legislation instead of trying them—if they prosecuted by att under instead of by triel by jury, it was in that case only right that the privilege should be theirs of • being considered not guilty, unless by that Act of attainder they were afforded the cespertunity of corning home, and on a certain day surrendering themselves to be tried.--( Hear, hear, hear.) Every one of these persons was absent from Canada at the time of these proceedings, and they were bound by the law of England to assume that they would hs.ve returned if a day had been fixed for their doing so, as be law there ought to have been. Such was the case or had to make out against these oolinauces, and wash was the eas e h e had to submit to their Lordships in favour of this Bill. Arbi trary power, said the Noble asel Learned Lori in cot:du:don, has been temporarily placed in the hands of the Governor of this province, not, however, to exasperate the rople, but to save them from the effects of their own violence, and to pro tect the innocent from the art:; and practices of the desigiting and taahlknt, It wii to enable the Government, l 7 having, a strong hand, to protect with it the peace of the Canadians ; " but, above all things, to enable you to look f award to that day when with joy you as well as they—and you who made the Act ought to feel the joy more than themselves—it was with a view to that happy day, when after the restoration of peace and security to the colony, you will be enabled to give back the Constitution, and cement more strongly than ever the connection between the two countries. Then I do implore your Lordships to act on the present occasion in the way b est calculated to bring that happy restoration about, and to preserve and strengthen the connection between these Provinces and the parent State."—( Loud cheers.) Lord GLENELG entirely concurred with the closincs words of his Noble and Learned Friend, that the powers of the late Act were given to protect the innocent and peace a bl e inhabitants of the colony, and to save the guilty from the consequences of their own violence. He agreed with his Noble Friend, also, as to the general principles on which he stated the Act ought to be carried into effect. He fully ad mitted that when such large powers were given th e y oug h t to be exercised with great discretion, and as sparingly as possible. The Act itself provided that the powers it conferred were not in any degree to be exercised beyend what the exigency of the case required. The whole question at issue turned on the propriety of the proceedings which had been the subject of so much animadversion, and on the exigen c y that gave rise to them. That was really the practical ques tion before them. His Noble and Learned Friend argued against the ordinances of the Canadian Government that they were irregular, that they were illegal, that the Governor had no right to issue such ordinances ; he argued fur ther, that in issuing them he contravened the intenti on o f Parliament in passing the Act, and that there were var i ous circumstances connected with these measures which aggra vated their injustice and illegality. His Noble and Learned Friend had stated much for which they had the auth or i ty of Isis Noble Friend alone; to that authority he (L or d Glenelg) was disposed to pay due respect, but he could not allow it to be infallible or peremptory in a case like this which was now under discussion. In allusion to the first class of offences, his Noble and Learned Friend had said that he did not believe the individuals had confessed themselves guilty. No doubt his Noble and Learned Friend was persuaded that such was the case, but he must be allowed to observe that this was an assumption at variance with the ordinances, in which it was. proclaimed that they had acknowledged and confessed themselves guilty. His Noble and Learned Friend said he had his in formation on authority, and doubtless he believed it correct ' • but lie ( Lord Glenelg) claimed for the Government of Canad a net to be condemned on an authority known to the Noble Lord alone, and in complete contradiction to the words of the ordinance. With respect to another of the ordinances, his Noble and Learned Friend had quoted several names in proof of the incorrect manner in which these documents were framed. His Noble and Learned Friend said, when last he touched on this question, he was not able to express more than his belief that a proper degree of care bad not been ex ercised; but he could now supply the deficiency, having it in his power to state that several of the names were not ac curately given. He (Lord Glenelg) was not in a condi tion to contradict that declaration ; but ho felt himself called on to express his hope that their Lordships would not allow a mere declaration of that description to weigh with them in estimating the merits of the Government. His Noble and Learned Friend had denounced the ordinances with great force and eloquence a violation of the law both of Canada and England ; but what was the practical con clusion to which he arrived at the close of his violently con demnatory harangue? If the ordinances were, as he de scribed them, acts of gross injustice, whet was the natural conclusion to which their Lordships would arrive ? Was it to bring in a Bill which distinctly stated that they were for the service of the public ? After hearing the severe denunciations in which his Noble and Learned Friend indulged in the course of his speech against the Government of Canada for issuing such ordinances, might it nut be expected that the disposition of their Lordships would be so far from ,ipproving them as to say, " Let us not tolerate them for a element ; let them not disgrace British justice, British honour, and British law ; let us declare that they shall no longer offend—that they shall no longer insult the country ?" What, however, said his Noble Friend in this Bill ? In the second clause were these words, " which ordinances cannot be justified by law, but are so much for the service of the public, that they ought to be justified by an Act of Parliament."— ( Hear.) Why, what a declaration was that, after such strong denunciations as the Noble and Learned Lord had indulged in I The Noble and Learned Lord had said they might make e hat alterations they pleased in Committee, but was that the proper way of dealing with so important a matter ? The great question was whether these ordinances ware justified or i w to e t r e by b e t f h o e r c e cr x i o g i n e g n cy o intof c t h o e m c n a l s i e t , t e a e n ha ,d would d g theyecr l r ed ev e t r h s a he et theirty decision when they came there ? Taking his Noble and Learned Friend's view that the law was doubtful, let them look at the position of Lord Durham, who found himself called on to take some step on his own responsibility. What did he do ? He took the course which the public service re quired, and those who most affected his measures felt themselves compelled to vote in Parliament that those measures, so ille gally adopted, were "measures taken for the service or the public, and though not justified by law, were such as ought to Le justified by Parliament." He felt that he might rest the neces sity of the measures of his Noble Friend on this very declaration in the Bill of the Noble andLearnedLord ; he felt that he could not be called on to prove that they were required by the exigency of the case, because they had the testimony of the Noble and Learned Lord himself to that important fact. He would now advert to the question of indemnity. It was not usual, he believed, to pass encase-es of indemnity till the matters to which they referred had been brought to a close.—(Hear, hear, hear.) It was not usual to grant an indemnity for a current transaction. But this Bill contained what he must describe us an unexampled proposition ; it provided indemnity for the continued exercise of an illegal act; and here was an act which was illegal, and the authors of which were liable to certain penalties, but it declared not only that they should be indemnified against those which they had al ready incurred, but also against those to which they would otherwise be liable hereafter. This was surely a new species of legislation. He believed it quite unexampled in the history of legislation to pass an Indemnity Act which was to operate prospectively. The general purport and scope of this Bill were that certain doubts were entertained its to the illegality of the proceedings of the Government of Canada. Te e 3", doubts having been entertained, it was proposed to p ass a ' de claratory Act, saving those doubts ; and at the same time to pass a measure of indemnity for the protection of tee parties who had acted on the doubtful construction. Of course the necessity of legislation or, the subject turned on the weight that was to be attached to the doubts entertained as to the ille gality of the proceeding of the Canadian Governmsenlise ,•Now, mil very great submission to the learned authoriti es that had been referred to, lie could not agree to that proposition of his Noble and Learned Friend, contained in the first section of this Bill, which stated those doubts to exist ; and thereupon proceed to enact as did . the u clauses.—( Hear, hear.) He had already stated with reguent. spect to one part of the ordinance, that he admitted its in validity. He alluded to the extension of the uperation of the Act to the Bermudas ; there could be no doubt but that was an error. But on that subject he begged to say, that in his opinion the better course to pursue would be fur tho Govern ment to writo to the Governor of the Bermudas, informing hint that the parties who had been sent there were free—( A laugh from the Opposition)—that they were not then subject to the restrictions which the Act imposed. That he consi dered the preferable course. With reference to the legality of the other Acts of the Government, and the necessity for a measure of indemnity, he had some further observati ens to offer to their Lordships. By the Canadian Act, the Gover nor was invested with the same powers of legislation as the Legislature of Canada possessed previous to the passing of that Act, with certain exceptions, which he would not now stop to advert to. The legislative powers of the Canadian Legislature were as ample as those of any of our Colonial Le gi datures. His Noble and Learned Fr iend ha d argued, with reference to the Act of 1774, that by that Act the criminal law of this country was transferred to Canada, and conse quently, it was not competent to the Colonial Legislature to make any change in that law ; but he (Lord Glenelg) begged to say, in the first place, and without fear of contradiction, it was clear that when they spoke of the transfer of the erirninal law of England to a colony, it could not be meant that the law of Eng land should be applied to such colony in the exact st ate in which it existed in this country, no change being made in it to adapt it to the peculiarities, to the habits, feelings, and cus toms and institutions of a state of society differing materially from our own. In fact, when the criminal law of England had been transferred to our colonies it had always been sub ject to certain modifications such as the peculiar circumstances of those colonies required. He need aot name the colonies; the rule had been observed in all ; indeed it was obvious that no other principle could have been adopted, for in some very heavy punishments were considered necessary for offences which in others people might be deterred front committineg by punishments comparatively light. The Act of 177 4 tela? c h transferred the criminal law of England to Canada, provid for changes that might be necessary at different times ant under different circumstances. lie contended, then, th at Colonial Legislature of Canada was empower ed to make thete ordinances by the Act of 1774, and the present: Go vernor of Canada being invested with the power wh.idnanees pre viously belonged to the Colonial Legislature, the di lic nevelt clew, c A o c u t l d t o n % o v t h i b c c h h o e n N s v i a d s e. r e r d e fe i w ere, , p s a u r b ti j c e u e l t a , r w o c r ' Lieu tt o e n s a u n c t l - i G a l o t , e e r a r n t i o o r t: s o a r : l e d by arid with the consent of the o a m m n e i a n from time to time determine and cause to be declared 711 n d" d m e e r n - i t n s C a s h i e t h i. e fo G r o t c e r t a i t i ) ra r .e ,. finned manner here ifter described." This provisien was eon by the Act of 1791. The Earl of DEVON read the lath section. •h section Lord GLENELG said that the object of the , Legislative Couned _st,he was to provide that no punishment should be nnpo i s l e“ ,o n any ordinances of the existing local government e) of three months' imprisonment and fine without the consent her Majesty i n C ounc il.—( H ear , h ear. ) le c ould not be de nied, however, that the exigencies of the present o ceast . l were such a s t o j us tif y a d eparture f rom such a reg ulation as this. It was perfectly competent for the Governor-G`ines ral of the C ana d as in Coun c il to exerc i s e a discretion as to the measte es w hi c h th e necess i ty o f t h e case require.. The Noble arid Learned Lord had referred to the proviso in the Canada Bill, which -• •t .d the Governor p. General from " • '• rel.ea ing,, suspending, or altering, an) vision of any Act of the Impel ial Parliament of Greet 13..itain, or of any Act of the Legislature cf Lover Canada, stste to their Lordships what the history of thie are nue; conoituted, repealing or altering any such Act of the Imperiel - Legend to p a p l. o p t s , j a ? r o e , d ,r j t s o , re (Lord Glenelg) Legg en I what the intention of its author, Sir William Foile.tl, was in introducing it into the Bill, as far as he ( Lor d 31 ` - nelg) had bees, able, upon very good audierity, to ascertain what that history and what that intention was. It origi nated in this way :—During the discussion of this question in the other House Government was asked by some Members on the opposite benches whether they meant that the Bill should authorise the Governor in Council to alter the Act of 1791, or any Act relating to tenures; to this question Go vernment replied, that they had no such intention, but they thought that the period would be so short that the Governor and Council would not interfere with the subject at all. Upon which it was observed, that as there was no such intention, the clearest and best way would be to insert a proviso on the subject in the Bill, so as to remove all possible doubts. It was clear, from the terms of the proviso, that it was intended to have a limited operation. The Act of 1791 gave the local Legislature the power of varying or repealing the law respecting Clergy reserves. There was an Act of the Imperial Parliament, of 1824 or 1825, which gave the local Legislature the power to alter the Tenures Act, and there was an Act of the local Legisla ture which did alter the Tenures Act ; and it appeared to him ( Lord Glenelg) very apparent, from the terms of the pro vision itself, that it was simply intended that these Acts should not come within the power of the Governor in Council. He (Lord Glenelg) could see no grounds for doubting the legality of these ordinances with reference to this proviso. The Noble and Learned Lord had considerably narrowed his ground towards the latter part of his speech : he set out with asserting that under this proviso it was im possible for the Governor of Canada to interfere with any Acts passed by the Legislature of either country but he afe terwards limited himself to protesting against the Governor making any new laws relating to privilegia to particular in dividuals.—( Hear, hear.) Did the Noble and Learned Lord forget that the Governor in Council had full power to suspend the Habeas Corpus Act, that he might invent new forms of treason? Surely, then, it was absurd to say that he was nor competent to apply himself to the punishment of particular offenders.—( Hear.) He could see no grounds for such argu ments. It appeared to him that the whole matter came to this, that this was not meant as a declaratory Act, but as an Act to restrain the powers given to the Governor General of Canada by the former Act—( Hear)—that was, in fact, a new law, pro posed on this supposition that the Governor of Canada had larger powers than he ought to possess ; and this would bring under consideration the whole question as to the powers with which that functionary had been invested. It certainly did appear to him (Lord Glenelg) very extraordinary that after giving Lord Durham the large powers rendered necessary by the peculiar and perilous circumstances under which he went to preside over the province, any attempt should be made to narrow his powers, or abridge his capabilities for usefulness. ( Hear, hear, hear.) It was essen tial to the welfare of Canada, and the interest of this country, that no such attempt should be sanctioned by Par liament.—( Hear, hear.) The province, it was true, was now happily in a state of tranquillity; but there still existed in it the elements of agitation.—( Hear, hear.) There were in it many persons ready to seize the first favourable moment for poisoning the minds of the Canadian people, and to delude them once more into acts of rebellion.—( Hear, hear.) There were persons there who were ready to avail themselves of any opportunity for counteracting the efforts of the Governor General ; and itovas essential to take care that the efforts of such persons should not have a chance of success. Whatever Noble Lords might think of Lord Durham's laws and ordi nances in themselves, no person could doubt as to the necessity there existed for excluding the offenders who had been referred to from the province, and of preventing their return; and, in his decided opinion, the Government there would have grossly failed in its duty had it not taken steps for this purpose.— ( Hear, hear.) The presence of these persons in Canada would be highly detrimental to its welfare. He felt it due to the safety of Canada, and to the best interests of the Crown, in reference to that province, to resist the proposed Bill. The Earl of RIPON thought the Noble and Learned Lord had fully justified the Bill which he called for. As to that part of the Act which it was allowed was not consistent with law, he did not see how the Governor-General, and those who acted with him, could escape the penalties they had subjected themselves to, without a Bill of indemnity.—( Hear, hear.) The Noble Lord seemed to think the difficulty as to the de portation of the parties to the Bermudas might easily be got over, by just telling the Governor of that Colony to let them go away again, which appeared to him ( Lord Ripon) a most extraordinary notion. Either the parties were legally sent there, or they were illegally sent there ' • and if they were ille gally sen t t h ere, the difficulty in which the deporting party was involved did not appear to him to be so very lightly got rid of.--( Hear, hear.) The Crown had the power of disallow ing any Colonial Act within two years after its passing; here was an Act confessedly inconsistent with law, and which could not be carried int o e ff ect ; an d as t h e Crown could not disallow any such Act in part, the most effectual mode of proceeding in this case would be for the Crown to disallow the Act without any further delay.---( Hear, hear.) Steps ought immediately to be taken to obviate the inconveniences arising from such absurd and extravagant ordinances.—( Hear. ) The LORD CHANCELLOR said there could be no doubt as to the fact that these ordinances could not legally operate beyond the limits of the province. The point was as to their legality within those limits. The Bill now proposed proceeded on the supposition of a doubt as to whether the Act, as it stood, did or did not authorize the proceedings which had taken place in the province, and the Acts of attainder which bad been made. It seemed to him that there could be no well-founded doubt on the matter.—( Hear, hear.) The proceedings which had been resorted to had precedents in all countries where occasions of similar neces sity had arisen.—( Hear, hear.) Whether the nature of each case was such as to Justify the course which had been adopted by the Governor-General—whether he bad taken care to make sufficient inquiry in every instance prior to taking active measures against the parties, there was no information to enable their Lordships to decide, nor had Government at present any means of giving that informa tion.—( Hear, hear.) He (the Lord Chancellor) would, therefore, abstain from entering upon this topic, and proceed to that part of the subject which it was practicable to dis cuss. Whether or not the existing Government in Canada, appointed under the Act passed this Session, had exercised their legislative powers discreetly, it was perfectly clear that under that Act they had full power to make occasional and temporary local Acts affecting individuals or classes of indi viduals.—( Hear.) The Noble and Learned Lord had assumed that this point was doubtful in the Imperial Act of tbis Ses sion. Now, that Act, in so many words, recited that it shall be lawful, after proclamation made, for the Governor of the Lower province of Canada in Council to make such laws or ordinances for the peace, welfare, and good government of the said province, as the Legislature of Lower Canada, as now constituted, is empowered to make; and that all laws or ordi nances so made, subject to the provisions hereinafter contained for disallowance thereof by her Majesty, and for receiving cer tain laws or ordinances for the signification of her Majesty's oessure therein, shall have the like force and effect as laws passed before the passing of this Act by the Legislative Coun cil and Assembly of the said province of Lower Canada, and assented to by her Majesty." This clause clearly gave t o the new Governor in Council the (same powers which the Legislature of the province formerly exercised, and there could be no doubt that this Legislature had fu ll power to pass any Acts it deemed fitting, under the Act of 1791, and had th e c l ause s t oppe d h ere t h ere cou ld not have been a moment's question on this point. When the No bl e Lord cited the Act of 1774, reference was made to the fifteenth section of that Act, which directed that " none of the said ordinances shall have the power of imposing any uh i s e s eent beyond three months' imprisonment," but this t a d reference only to ordinances made by the Governor in Council up to the period when a Representative Assembly was r i ven to the province, which took place in 1791, after which tine the Legislature of the province had exercised full legisla tive power until the Act passed which invested the present Goaernor -General with the powers form er ly en j oye d b y that Legislature. Did the clause contain no other words than he (tile Lord Chancellor) had recited, there would have been no g=ounds for even raising att argument upon the subject of the l ent of the Governor-General's power to make such laws as h e thought fit. There was, however, this proviso :—" That it s h e ll r ot be lawful for any such law or ordinance to impose any new tax, duty . , rate, or impost, or to alter the law in the pro ince respecong the constitution or composition of the Legis vlative Assembly thereo , or respectine the right of any per son to vote at the election of Members of the said Assembly, or respecting the q ualdieetion of such Mem bers ; nor shall it ' be l a wful by any such law to repeal, susp en d, or alter any pro vision of an y Act of the Imperial Parli ament of Great Bri tain, or of any Act of the Legislature of Lower Canada, as now constituted, repealing or altering any such Act of the Imperial Parliament." The Noble Lord had already stated for what purpose this proviso had been introduced. The object for which these words were introduced was obvious, and he could have hardly ;believed that they could be misconceived. If it were not as he had described, it would be giving the Government of Lower Canada power to alter anything connected with the criminal law of that coun try, andiby another part of the Bill it would be restraining the exercise of such power. Tee words referred to in the proviso had no such restraining power as was contended by his Noble and Learned Friend. The declaratory Bill of his Noble and Learned Friend would leave, however, the whole difficulties of the case untouched, for he had proposed to enact that they should not make any haves or ordinances touching individuals, but at the same time proposed that the power should be conti nued as regarded the multitude. This Bill left the doubts which it was alleged existed exactly where they were. He concluded that there was no doubt as to the construction of the Act ; and, therefore, that there was no necessity to pass a de cleratory Bill. The second clause of the Bill of his Noble and Learned Friend was of the most extraordinary nature, and after declaring that certain acts of the Governor of Ca nada were illegal, it went on to make them legal, and to al. low such proceedings to take place for the future. It would be most extraordinary for Parliament to declare that these acts were illegal, and then to say that the Governor of Ca nada or any person under him might coati nuc to act upon them. The proposed indemnity, therefore, was for what was clearly considered an excess of power, and it was proposrd at the same time to continue this CICCES of power. He would then ask did Noble Lords really feel that there were serious doubts as to the construction of these Acts, and as to the Power in the hands of the Governor of Canada to pass Acts of attainder. If this powe r was to be taken from tied Noble Earl, they would leave his Government les s than was pos sessed by the Govern rent of the Upper Province, from which it was not thought 'recess try to take away the Legislative As - 5 : 111 , b1 Y. The Governor of Can ada, however, who was placed ii•, the situation of the Legislature, was not to have this power, notwithstanding the difileulty of the situation in which he was Pbcial and the daneers in which that colony was involved. He was sure, therefore, they wo uld not take this power away from the Noble Earl, which was essential to all Government, amid, above all, to one in the situation of Cana la. Lord LYN DHUR ST felt anxious to address a . few obser vations to their Lordships on the question before tnean was ready to admit that the Noble Earl at the head of the Government of Canada, whom be was•proud to call his friend, I had acted throughout these transactions with the best passible motives and intentions. lf, however, there was anything illegal in the conduct of that Noble Earl, even though he (Earl Durham) himself might not be aware of it, surely they were bound to interfere to protect him from the consequences of such illegal acts. Their Lordships, as the guardians of the laws of the country, were in a special manner bound to interfere for his protection. If their Lordships were satin. fled that there was anything illegal in the ordinances is sued by the Earl of Durham, as Governor of Canada, he deemed it quite clear that their Lordships ought at once interfere and put a stop to the mischief; to prevent its being carried further. They had been told by the Noble Lord opposite (Lord Glenelg), towards the close of his speech, that the question they had to consider divided itself into two parts, and each of these parts demanded a distinct consideration. The first part of the question related to those parties who were stated to have confessed their guilt, and who had been transported to Bermuda. The other part of the question related to those who were absent from the province, and against whom, notwithstanding judgment had been pro nounced, and who were to be deemed liable to the punishment of death in case they returned to the province. With respect to the first part, the Noble Lord opposite admitted that the Go vernor of Canada, and his Council had been guilty of an illegal act in transporting these parties to Bermuda, but, that with respect to the second part, he considered the proceedings per fectly legal and justifiable, more particularly recollecting against whom this judgment had issued. All this had been stated on a former night, and the illegality of the proceed ings taken by the Governor in Council appeared to be alto gether admitted. It was admitted that the ordinances issued by the Noble Earl were illegal. It was also admitted that the No. ble Earl had assumed an authority not conferred upon him by the Act of Parliament', under which he held his powers. It i was admitted, and could not be denied, that these per- I ' sons had been placed under restraint contrary to law; that i they were illegally detained in custody; that they were held ' as prisoners, and kept in restraint contrary to the law of the land. He must say that though the Governor had a right to go as far as the law admitted hint to go, yet he had no right to go beyond the law. He could not conceive, when they ad mitted that the power was vested in the Crown by the Consti tution to disallow these acts, he could not conceive why they should not interfere to disallow these acts. It was their duty to interfere. Unless he beard a distinct assurance from the Noble Lord opposite that what had been ilegally done would be disallowed, he should feel it to be his duty to vote for the Bill of the Noble and Learned Lord.--( Hear, hear.) Why a Bill of indemnity should be introduced bad been much disputed. The Bill before their Lordships had been made the subject of much cavil, and sonic of the phrases which it contained bad been objected to. But if the Bill con tained any phrases that were found to be objectionable, surely, when the Bill came to be discussed in Committee, those phrases might be altered or excluded from the Bill. He was sure, however, that these grounds of objection were untenable, and that no such phrases would be found in the Bill. He had seen the precedent from which the clauses of the present Bill had been taken. The Bill which formed that precedent had been framed by one of the first lawyers that had ever presided in any of the Courts of this country.—( Hear, hear.) But surely the necessity of passing this . Bill could not be doubted, unless the Government would give a pledge that they would take measures to disallow what. bad been done. Just l e t th em consider in what a st,te they would leave the Governor of Canada, as well as all those who bad carried his orders into execeeion. and acted in virtue of his authority. The Noble Earl would be subject to have proceedings instituted against him for the violation of the law. He would be subjact to suits against him, civil as well as criminal. The persons acting under his authority, even though guilth as of any in. tention to violate the law, would, nevertheless, be equally liable to have suits, civil and criminal, instituted against them for acts done in violation of the law. When those indi. victuals who had been transported under tile authority of this ordinance got to Bermuda, they might be advised to sue out a writ of habeas cerpus, and have the opinion of a competent judicial tribunal pronounced upon the legality or illegality of the proceedings by which they had bLen SO sent there. If on the hearing of the question their detention should be pronounced illegal, and they should be discharged, what would be their first acts on their dis charge? Would not their first' acts be to institute proceed ings against those persons by whom they had been kept in constraint in the Hand of Bermuda? Would they not com mence actions against each and every one of those persons who had acted under an illegal authority, and would not they endeavour as eagerly as they could to bring those actions to a conclusion before the passing of that Bill of indemnity, which the Noble Lord opposite had told their Lordships that even ing it was the intention of the Government to introduce in the next Session of Parliament.—( A laugh.) Why, the very Admiral might be liable to have proceedings taken against him. He believed, indeed, that Sir C. Paget had not interfered ,further than to place these parties on board the ship that was to convey them to Bermuda; but if that officer, acting upon the orders of the Noble Earl, should proceed from hie station, and go with these pris oners t o B erm uda, he would be liable to have civil and criminal proceedings carried on against him, un less they p as s e d a Bill o f i n d emn i ty. Th ey were b oun d to pass the whole of the Bill before tlie House, unlcssthc Government were prepared to act upon the recommendation that had been given them on a former eve n i ng , as we ll as on th e p resent oc casion, and to pledge themselves that these ordinances should be disallowed. Now, what was the whole cause of the evil? lie (Lord Lyndhurst) could trace the entire of the evil to the plain cause—that the Noble Earl had acted contrary to the spirit of the Act, and without the ail and advice of a corn pezent Council. The Act which hal conferred extraordinary powers upon the Noble Earl had provided against any abuse of those powers, by providing that the Noble Earl should act with the aid and concurrence of a Council. What was the intention of their Lordships and of the Parliament in provid ing that the Noble Earl should have the assistance of a Council ? Was not their intention this, that such Council should be constituted of five discreet, p,udent, and rave per sons, acquainted with the laws, and who would be ;hie so to advise the Noble Earl as to reconcile and confine his conduct to a strict conformity with the laws and constitution of this country ?—( Hear, hear.) He asked their Lordships, when they passed that law, did they not assume that the Noble Earl would be assisted by such a substantial Council as that which he had ventured just now to describe? But did the Noble Earl ap_ point a Council of this description? No such thing. This appointment of a Council was altogether illusory. It con sisted of an Admiral, of a few military officers, and of one in dividual belonging to the profession of the law, but who had never been known to have had any extensive practice in that profession. In fact, be might, safely say that, with the ex caption of the Admiral, all the persons who constituted this Council were dependents on the Noble Earl. The reason why their Lordships and the Parliament had provided for the establishment of a Council was, in order that it might advise, and, if necessary, controul the conduct of the Noble Earl, in whose hands Parliament bad placed extraordinary powers. Now, did their Lordships or anybody else suppose that the Council which the Noble Earl had• summoned to his assist ance would do any such thing ?—( Hear, hear.) Did any one suppose that they could give that adsice to the Noble Earl which would enable him to keep his conduct in strict conformity with the law, cr that they could controul his acts ? So far as concerned that experience and that acquaintance with constitutional law so necessary to enable his Lordship to be properly advised, lie repeated that the appointments made by the Noble Earl were altogether illusory. This was not the intention when the Act was passed. It was to this cause—to the establishment of such a Council as this—that was to be traced the criginal cause of the evil and the promulgation of such ordinances as these, and the violation of the law which had taken place. He agreed with the Noble and Learned Lord in the opinions he had expressed respecting any doubts that existed as to the meaning of this Act of Parliament ; and whatever doubts did exist, he agreed they ought to be cleared up. By the 14th of Geo. 111., to which reference had been already made, the criminal law of this country was, by an Act of Parliament of Great Britain, transferred to the colony of Lower Canada. The terms in which this transfer was made wer e of a marked character, for it was expressed in the Act by which our criminal code had been extended to Canada, that it had been to extended in order to give the Canadians the bene fit of a lenient and just system of law. That transfer was to be acted on, not merely in carrying these laws into effect in their spirit and their principle, but also in the farms of proceeding. It was provided that no. other rule of law was to be acted upon but that which the Act of the Parliament of Great Britain had declared should be the future law of the colony. But it was also provided that the Governor and the Legislative Council as it then existed might from time to time, so far as they found it expedient to alter and modify that law, to suit it to the cir cumstances of the colony. Another Act was passed in 1791, confirming - the former Act, so that it was plain that, by an Act of the British Parliament, the criminal law of Great Bri tain, with all and each of its provisions and forms, was in troduced into the laws of Canada. It was clear, so far as de pended upon the Parliament of Great Britain, that the crimi nal law of this country had been transferred to Canada. The law with respect to high t reason was part of that law, and it was quite clear that by the operation of the 1411 and 31st of George 111. the law of high treason had been introduced into Canada. The Legislature of Canada were confirmed in the power to alter and amend the criminal law, but they never intefered to alter the law with respect to high treason. '1 any never interfered to alter the law as it stood when it was transferred to, and confirmed in, Canada by the authority of these two Acts of Parliament. The powers which were postesscd by the Legislature of Canada before the introduction of the Act lately pased by Parlia ment were by that Act continned to Lord Durham, with the important restricti es which had been alluded to in the course of the debate, aed which had been introduced into the Bill v.hen it was ill the other House of Parliament by a Learned Fread of his ( Lord Lyndhurst). He had lately had a cor • respondence upon the subject with his Learned Friend ( Sir iliatn Follatt), and Le as,u:td him ( Lord Lyndhurst) that in proposing that restriction he never intended that it should oparate in the manner asserted by the Noble Lord opposite, as well as by the NoLle and Learned Lord upon the Woolsack ; hut it was intended to restrict the Noble is from any fundamental interference with the criminal law. What was there unreasonable in introducing such a restriction in the case of a person who for two years was to exercis e obsolete pawcr? Was there anything unreascmable in rostricting him from interfering or attempting any altera tion of the criminal law ? Why, the Noble Earl had not only interfered with the law, but he had introduced what the Noble and Learned Lord opposite had justly described to be a new law of treason. The ordinance published by the Noble Earl declared, that particular individuals against whom warrants had been i , e , ued, haying absconied and not surrendered them selves to justice, that if they should at any time hereaftcr ap pear is the province they should be deemed guilty of high treason, and should surfer the tenalty of death. So that they were to be tried, not for the high treason which they ha d committed before leaving the province, but for co eing aga into the province. Why this was a new kind of treason., and was inconsistent with the enactments of the 146 and 31st George 111., by which the English law of treason had been introduced into Canada. Now, he would ask:their Lordships whether these ordinances did not go to the full extent of al tering the 14th and 31st of Geo. 111., and the system which had been established by these Acts ? Now, let him suppose that, instead of confining his alteration of the law to these casee, the Noble Earl had attempted a general alteration of the law of high treason, and had introduced, instead of the existing law, an entirely new system ; if the Noble Earl did this, would any one attempt to say that this was not an alteration of the 14th and 31st of George 111., by which the criminal law, including the law of high treason, was established in Canada. The effect of an alteration of any part would be the alteration of the entire law. He (Lord Lyndhurst) had reason to believe that the learned individual alluded to, in the restriction which he proposed, had intended that the alteration should not be confined within the limits stated by the Noble Lord opposite, but was intended to be restrictive so far as the suspension of Trial by Jury, and also so far as the suspension of the Habeas Corpus Act. He asked their Lordships at the time g t t l ii ii i t ngp they o t w o ierl7 io s in s f e d( passing se h s e i nEßgai Earl ordinances o d f id i p r ey ba om s f p sa p un o cd s t h e a ha t his t fie vn t e h d oe officer f f w ye ee as r r e s this ?—( Hear, hear.) Ho was sure that no such power was ever intended to be given. lie would again ask their Lordships, did they ever intend when they passed this Act to give a power to the Governor of Canada and his five mi litary assistants to banish persons for life—without trial__ without notice of the charges against them—without bringing forward any evidenc e t o p rove t h e guilt of the accused,and without giving them any opportunity to be heard in their de fence ?—( Hear, hear.) Not one of these persons had been tried —not one of them had been beard in his defence —not one of them had been granted an opportunity of being heard. But yet, notwithstanding all this, these parties were by an ordinance of the Noble Earl to be banished for life, and if any of them should hereafter return to the province, they should be arraigned: for that offence and suffer the punish ment of death. Here then were persons by an ordinance of the Governor of Canada, aided by his five Councillors, con demned to be banished for life, without any charge whatever having been made against them in a Court of Justice—with out ever having been arraigned, or having any notice given of any charge to which they would be afforded an opportunity of answering—they were to be banished for life, and subject to the penalty of death in case they returned.—(Hear, hear.) Did their Lordships ever hear of the exercise of powers so eatensive as those ?—( Hear, he.tr.) So this was to be the fate of that system which, when it was conferred upon Canada by the 140.] of George 111. had been depictured its the terms he (Lord Lyndhurst) had already quoted as a mild and lenient system of law. Did their Lordships mean by the Act which they had passed to give to the Governor in Council a power and authority to introduce a new descrip tion cf treason ?—( Hear, hear.) Now, what was the state of the law respecting treason in this country? When an alle gation of treason was made against an individual a warrant was issued against him ; if the party absconded, did the law then declare h m to be guilty of treason ? No such thing. The law gave the party an opportunity to be tried, and to answer th e c h arges against him. If the party did not return did the law adjudge him to suffer the punishment of death ? No such thing; the party was allowed a certain time, during which lie might come and surrender himself to justice, and answer the charges made against him. There was netliing like the Noble Earl's law to be found in this coun try. The instance of the 17th of George the Second was not analogous to the law of treason introduced by the Noble Earl. That Act (17th Gco. II.) was directed against the s nis of the Pretender, and it declared that if any of them, lauded in Oda ccuntry he should be deemed guilty of high treason. That power expired at the death of these indivi viduals, and he trusted that their Lordship:; would never sane thm the placing a power of this kind in the hands of any indi llesr, Lear.) The Noble and Learned Lord on the Wool.aack had said that a power of altering the law resided in the Legislature in Upper Canada, where there was less dis talt brume and less occasion for the c:cercise of such a power than in Lower Canada. The Noble and Leaaned Lord put a true construction upon the intention of the Act. The ob ject was not to seed the Noble Earl out to Canada to make laws, but to make inquiries and to collect information as to what system might be most usefully adopted in framing a future Cover - ill - neat for anada. It was found necessary to suspeed the Legislature of that province during the period limited by the Act, and the Noble Earl's duty was understood to be, whilst administering, the Government of the province, also to make inquiries, on the result of which Parlianaent should be guided in the adoption of some system for the future Government of Canada. Let him now call the [attention of their Lordships to the new law of attainder which Lord Durham had introduced. But how was the power ofattainder exercised it, this country ? His Noble and. Learned Friend had referred to cases in tehich attaindere had been resorted to. Ile would refer to the case of Henry St. John Viscount Bolingbroke. He was only attainted unless on a c‘ rtain day, and within a certain specified time he ap peared to answer the charges made against him. An oppor tunity was given him to prove his innocence if he was innocent, but he was net attainted if he came into the country ; but in case he persisted in remaini ng out o f the country. His. Noble Friend had also alluded to the case of the Duke oC Ormond, but there was no instance in which a considerable space of time had not been given to the party to appear, to make his defei.ce against the charge brought forward against him. it was not coining Lott) the country that constituted the attainder, hut, on the contrary, the peaty was given time to come into the country, aid meet the charges against him on which the Bill of attainder was founded. Amongst the reasons for the differeece that had occurred in that House at the time of the attainder of Lord Bolingbroke, it was complained that the time given to Henry St. John Viscount Boling broke to answer the charges against him wars not as exten sive as was consistent with the principles of justice. A war rant had issued against Lotd Bolingbroke upon a charge cf high treason. He did not appear, and the Bill of attainder was issued. He was adj'idgcd guilty of high treason, not for coming into the country, but in case he persisted in refusing to come forward to defend himself against the charges of trea son alleged against him. But what was the case in Canada? These parties are banished for life without a trial, and they arc told that if they return they shall be tried, not for the treason they have 'already committed, but for the new treason of returning into the country, Why, this was a monstrous course of proceeding.—( Hear, hear.) What did the COMMOII law say ? Why this, if a man commit a felony, and abscond— nothing was done until a bill of indictment had been found against him-_a capias was then issued, and he was taken. hut if he could not then be taken, a certain time was given, nine months, to enable him to appear to answer the charge against him. If he appeared within the nine months he was then to answer the charge, not of coming into the country, but the charge originally urged against him. These proceedings, which had taken place under the sanction of the Governor of Canada, were inconsistent with every principle of justice and law. Ne notice was given to these parties--no opportunity was given them to answer the charges against them. In conclusion, unless he received an assurance from the Noble Lord opposite that he would advise the Crown to disallow those ordinances, he ( Lord Lyndhurst) would feel it his duty to the Crown and to the country to give his rote in support of the motion of his Noble and Learned Friend.— (Hear, hear.) Viscount MELBOURNE, who was very indistinctly heard in the gallery, said that he had no doubt that it was a regard far justice and an anxiety to maintain the law, as well as to main, tain the honour of this country in her relation with those pro vinces, that induced the Noble and Learned Lord to bring for ward this question, and to argue it with the zeal and ability which he had displayed. It was impossible not to feel that this was a quastion of very great importance, considering the precarious situation in which those provinces were placed. It was impossible to doubt that an impression would be pro duced by this debate which might tend materially to affect the peace of the country and the integrity of the empire. In fact it would not be going too far to state that the peace of the world might even be affected by it. The Noble and Learned Lord, on a former occasion, had remarked upon an expression of his (Viscount Melbourne's), in which he had stated that the circumstances which induced them to depart from the Con stitution of the country, and to invest in a single man the whole legislative power of that country, should induce them to consider with great care and caution how they interfered. unnecessarily with the exercise of those powers so conferred. It was e: most serious consideration to entrust those enor mous powers to any individual ; but they had been, however, entrusted to the Noble Earl by a great niajority.of their Lord ships, and whilst a great approbation of that individual had been expressed by many, no censure of his appointment bad proceeded from any of their Lordships. lie did not think it became them by bringing forward discussions of this kind to invalidate what they had already doraa. He thought, when they entausteil such large powers us these to r ny that they ought likewise to accompany them wich their confi dence. To do anything calculated to thwart or embarrass the exercise o: those powers was acting in a dangerous spirit. It. was not acting in the way that was worthy of a high and ge nerous nubility, but rather of a low and truculent democracy- ( Laughter and ironical cheers)—or rather of an ungenerous aristocracy, endeatourieg to weaken the influence of chose whom they employed. Considering the circumstances under widen the Noble Earl had exercised those powers, and con sidering the cat, aordinary nature of those circumstances, they ought to be very careful and cautious how they took any step which :night most seriously affect the interests and welfare of this country, The Noble and Learned Lord opposite had made some observations respecting the mode in which the Noble Lord at the head of the Government of Canada had constituted his Council. But their Lordships ought to recol lect that they gave to that Noble Earl the power of naming. that Council. It was very possible that when he arrived 171 that country such was the state cf party feeling, that he though t it better to asaocirte no person.; of either paray in the Colony with his C ounc il. Il e m i g ht h a ve very justey thought that if be excluded ail parties he would o b e crs like r ly- on to e give more satisfaction than by admitting men of different opinions, he would on , ese ensured b . party or the other. If he had constituted b r :t i l e iatC ' o ' ui o i , c_i t l ak o! itzts, the conduct of that Caunstl. Nero could , no doubt that the Noble Earl acted wisely and prudently that respect. There was no - ..rouht that the course which he Lei pursued had produced satisfaction amongst those whom he bad been sent to novern, and that satiafa.ction would be se riously interrupte:, seb.wi they found the conduct which had questioneaty L e bee,; pursued,arar o ds ov t e li r e nm N e o l l i d t e oLfort;l;ebyNtolibilse cio,:uai:iltr;vv.ouldUtun enil-aaass. d by the course taken on the present occasion aed 'Pit utility very much impaired. Ile ( Viscauet Nleibourre) had ter hesitance) in stating it its l.is opinion, that it would be better to address tile Crown to censure and recall at once: that Noble Earl, than to weaken and esebarass his Gc,vero meat, and impair his authority, mid thus contribute tQ the